Law, Regulation and the Public Interest

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Effective from April 2015, section 74 of the Criminal Justice and Courts Act 2015 repealed section 8 of the Contempt of Court Act 1981 in England and introduced a new set of rules regarding disclosures made by jurors. The provision introduced the new rules into the Juries Act 1974. They do not legitimise ‘public interest’ disclosures by jurors to journalists or otherwise to the public. Rather, they reiterate the pre-existing rules and in addition extend the available defences so as to allow for disclosure of inappropriate jury conduct to the police after trials have reached their conclusion.

Section 20D(1) of the 1974 Act now provides that it is an offence for a person intentionally either ‘to disclose information about statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations’ or ‘to solicit or obtain such information’. This offence is subject to exceptions set out in sections 20E to 20G.

Section 8 of the Contempt of Court Act 1981 was enacted following publication in the New Statesman magazine of details of the jury deliberations at the trial of Jeremy Thorpe. The publishers had been prosecuted, but acquitted, under the pre-existing common law of contempt.

The Court of Protection has announced a pilot project to run from January under which the presumption in rule 90 of the CoP Rules 2007 that hearings are heard in private will be reversed. The Courts and Tribunals Service has published a background note, alongside a draft practice direction and draft order.

This specialist court was established under the Mental Capacity Act 2005 to deal with issues relating to a person’s property, financial affairs, and personal welfare where it is established that the person in question lacks capacity to make such decisions.

A number of newspapers and in particular the Independent have campaigned for the maximum possible openness of Court of Protection proceedings. Latterly, it has become possible for journalists to apply to have access to hearings. The requirement for a “good reason” to permit media access to and reporting of proceedings is said to “lie at the heart” of the determination of such media applications (although requiring
“good reason” did not ‘import a concept of being exceptional’ – per Hedley J, in Independent News and Media Ltd v A [2009] EWHC 2858 (Fam), [15]).

The involvement of the media in Court of Protection cases is a source of concern for some parties. Evidence is routinely provided to the court regarding the potentially deleterious effect of publicity on the vulnerable people involved. The court has preferred to address this concern through the imposition of reporting restrictions, rather than exclusion of the media from the court.

The pilot project seems to run in line with recent senior judicial sentiment. Speaking in October 2013, Sir James Munby expressed the view that ‘there should be the same kind of presumptive right of media access to court of protection proceedings, as there are in family proceedings’.

The Interception of Communications Commissioner, Sir Stanley Burnton, has found that Police Scotland breached a newly installed code of practice that is intended to protect journalists’ sources when police apply to obtaining communications data.

In a statement published today, the IoCC Office said that there had been contraventions of the Code in respect of 5 applications for communications data submitted by Police Scotland relating to one investigation. Police Scotland had sought communications data in order to determine either a journalist’s source or the communications of those suspected to have been acting as intermediaries between a journalist and a suspected source.

Police Scotland were found to have contravened paragraph 3.78 of the Code, under which judicial approval is required to acquire such communications data. Moreover, they failed to satisfy adequately the requirements of necessity and proportionality or to give due consideration to Article 8 or Article 10 of the European Convention on Human Rights (ECHR). Some of the applications were also made by a person who was not independent of the investigation concerned: also a breach of the Code.

This is a launching post for a new blog on the law and regulation of newsgathering. The blog is associated with the forthcoming text, Newsgathering: Law, Regulation and the Public Interest that is to be published by Oxford University Press in spring 2016. The aim is to note and to comment upon developments in the law and regulation governing newsgathering by journalists and others.

This website will serve as an archive of developments in these areas. The website is structured in six parts. The front-page will carry the most recent blogposts. Aside from that, all postings relevant to each of five areas of newsgathering will be collated on five pages dedicated to each theme. The themes are: (i) the public interest, (ii) the protection of sources and materials, (iii) access to public information, (iv) intrusive newsgathering, and (v) newsgathering and publication torts. These pages can be accessed through the menu at the top left of each page.